IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944
WP(CRL.) NO. 297 OF 2022
PETITIONER/S:
SHAIJU @ PALLAN, AGED 43 YEARS
S/O. VARGHESE, MACHINGAL HOUSE, PANTHALLOOR DESAM,
NELLAYI VILLAGE, KODAKARA POLICE STATION LIMIT,
THRISSUR RURAL, THRISSUR DISTRICT - 680684.
BY ADVS.
P.K.VARGHESE
K.R.ARUN KRISHNAN
DEEPA K.RADHAKRISHNAN
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY ADDITIONAL CHIEF SECRETARY TO
GOVERNMENT, HOME DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM - 695001.
2 THE DEPUTY INSPECTOR GENERAL POLICE,
THRISSUR RANGE, OFFICE OF THE DEPUTY INSPECTOR
GENERAL, THRISSUR RANGE, THRISSUR DISTRICT -
680001.
3 DISTRICT POLICE CHIEF
THRISSUR, RURAL, HAVING OFFICE AT KALYAN NAGAR,
AYYANTHOLE, THRISSUR - 680003.
4 DEPUTY SUPERINTENDENT OF POLICE, CHALAKKUDY,
HAVING OFFICE AT NIRMALA COLLEGE ROAD, JYOTHI
NAGAR HOUSING COLONY, CHALAKKUDY P.O, THRISSUR
DISTRICT - 680307.
5 INSPECTOR OF POLICE, KODAKARA POLICE STATION,
HAVING OFFICE AT KODAKARA POLICE STATION,
KODAKARA, THRISSUR - 680684.
BY ADVS.
ADVOCATE GENERAL OFFICE KERALA
ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11)
OTHER PRESENT:
SRI.K.A.ANAS -GP
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD
ON 01.07.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(Crl.)297/2022
2
K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.
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W.P.(Crl.)No.297 of 2022
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Dated this the 1st day of July, 2022
J U D G M E N T
Jayachandran, J.
1. Ext.P1 externment order dated 17.1.2022 issued under S.15(1)(a) of the Kerala Antisocial Activities (Prevention) Act, 2007 [for short, 'KAA(P)A'] is under challenge in this writ petition. As per the order impugned, the petitioner was restrained from entering the limits of Thrissur Revenue District and from engaging in any activity therein for a period of one year.
2. Heard Sri.P.K.Varghese, learned counsel for the petitioner and Sri.K.A.Anas, learned Government Pleader (attached to the Advocate General), on behalf of the respondents. Perused the records.
3. Petitioner's challenge to Ext.P1 order is premised on the following grounds:-
(i) The sufficiency of the bond executed under S.107, Cr.P.C, was not considered by the W.P.(Crl.)297/2022 3 detaining authority, while passing Ext.P1 order.
(ii) No reason has been specified by the detaining authority to impose the maximum punishment of one year of externment.
4. Learned counsel would elaborate that five crimes, alleged to have been committed during the period from 2016 to 2021, have been reckoned for the purpose of passing Ext.P1 order, the last of which is crime No.512/2021 of Kodakara Police Station, for offences under Ss.308, 427, 506(i), 294(b), 324 etc. According to the learned counsel, the incident occurred on 8.10.2021 and the petitioner was arrested on the same day. He was remanded to judicial custody until he was enlarged on bail on 9.11.2021 as per orders passed by this Court in B.A.No.8357/2021. On 17.11.2021, the petitioner was made to execute Ext.P9 bond under S.107, Cr.P.C, for a period of 30 days. Ext.P1 order is vitiated, since the detaining authority has not considered the sufficiency of Ext.P9 bond under S.107, Cr.P.C, and Ext.P11 rowdy history sheet, opened in the petitioner's name. As regards the second ground, learned counsel pointed out that the maximum period of punishment by way of externment under S.15(1) of the W.P.(Crl.)297/2022 4 KAA(P)A is one year. Ext.P1 order does not disclose any reason as to why the maximum punishment has been imposed.
5. Per contra, these contentions were refuted by Sri.K.A.Anas, learned Government Pleader (attached to the Advocate General). He pointed out that the sufficiency of the bond executed under S.107, Cr.P.C, as also, the rowdy history sheet of Kodakara Police Station were specifically considered at page nos.8, 9, 10 & 11 of Ext.P1 order and a finding was entered into to the effect that the various steps, including the one under S.107, Cr.P.C, and rowdy history sheet, were found to be insufficient and ineffective to curb the criminal propensity of the petitioner. As regards the maximum period of punishment, learned Government Pleader submitted that as many as five crimes have been reckoned for the purpose of Ext.P1 order, all of which were grievous in nature. It has been specifically found that various steps initiated to prevent the petitioner from indulging in further crimes failed miserably, wherefore only, the period of one year of externment is fully justified. W.P.(Crl.)297/2022 5
6. Having heard the learned counsel appearing on both sides, we find considerable force in the submissions made by the learned Government Pleader. The five crimes, which were reckoned during the stipulated period for the purpose of Ext.P1 order, are narrated in the tabular statement shown herein below: Sl. Police Station Date Offence(s) Stage Court No. and Crime No. 1 Sulthan 24/02/16 Under Pending Addl.Session Batheri PS, Ss.120(b), trial as SC s Court, Crime 365, 395 No.74/2018 Kalpetta No.177/2016 and 201 IPC 2 Thirunelli 18/11/18 Under Pending JFCM Court, PS, Crime Ss.109, committal Mananthavady No.385/2018 120(b), proceedings 395 and as CP 212 IPC No.8/2021 3 Irinjalakku 09/03/20 Under Pending Sessions da Excise S.20(b) trial as SC Court, Station, (ii)(b) of No.405/2020 Thrissur.
Crime the NDPS
No.6/2020 Act
4 Kodakara 06/09/21 Under Pending JFCM Court,
PS, Crime Ss.447, trial as CC Irinjalakkud
No.451/2021 294(b), No.2174/2021 a
506(ii)
and 34 IPC
5 Kodakara 08/10/21 Under Pending JFCM Court,
PS, Ss.143, committal Irinjalakkud
Crime 147, 148, proceedings a
No.512/2021 341, 323, as CP No.
324, 8/2021
294(b),
506(i),
427, 308,
201 & 149
IPC
It could be seen from the above that the petitioner was involved in five crimes, during the immediately W.P.(Crl.)297/2022 6 preceding periods of six years, thus satisfying the definition of a 'known rowdy' as per S.2(p)(iii) of the Act, apart from the fact that the offences involved were relatively serious in nature.
7. We will first deal with the two specific contentions of the learned counsel for the petitioner. The first is pertaining to the sufficiency of the proceedings initiated under S.107, Cr.P.C, as also, inclusion of petitioner's name in the rowdy history sheet of Kodakara Police Station. As pointed out by the learned Government Pleader, these aspects are elaborately discussed in Ext.P1 impugned order at page nos.8, 9, 10 & 11. In paragraph no.7 (page no.9), it is specifically found that even after execution of the bond under S.107, Cr.P.C, the petitioner had indulged in two crimes, i.e. crime nos.451/2021 and 512/2021, both of Kodakara Police Station. In this context, we notice that execution of the bond made mention of by the learned counsel for the petitioner on 17.11.2021 for a period of one month was, as a matter of fact, in continuation of an earlier bond executed on 27.11.2020 for a period of one year. It was while such bond was holding sway that the above crimes were committed. We W.P.(Crl.)297/2022 7 also notice that a rowdy history sheet was started in respect of the petitioner on 6.2.2019, as could be seen from paragraph no.6 of the impugned order and it was thereafter that the first bond under S.107, Cr.P.C, was executed for a period of one year. The satisfaction of the authority is writ large in its discussion contained in paragraph nos.8, 10 & 12 of the impugned order. We are fully convinced of the satisfaction of the authority that the steps initiated against the petitioner by opening a rowdy history sheet at Kodakara Police Station, followed by execution of the bond under S.107, Cr.P.C, were thoroughly insufficient and ineffective to curb the criminal propensity of the petitioner, which is explicit from the fact that the petitioner had indulged in two further crimes after execution of the bond. We, therefore, reject the first contention.
8. As regards the second contention that the authority has not stated any reason for awarding the maximum punishment, we find the same also untenable. As we have already noticed, the petitioner had indulged in as many as five crimes during the stipulated period of six years. The impugned order W.P.(Crl.)297/2022 8 specifically finds that the steps taken against the petitioner were not effective in preventing the petitioner from indulging in further criminal activities. The satisfaction of the authority is stated in so many words in the impugned order, supported by facts and circumstances. We further take note that in all the above crimes, the petitioner stood enlarged on bail, obviously with a condition that he shall not indulge in any other crime while on bail. This condition in every bail order is openly flouted, as could be seen from the further crimes registered against the petitioner. We have already found that the opening of rowdy history sheet in the police station concerned and initiation of proceedings under S.107, Cr.P.C, did precious little to check petitioner's criminal activities. In such circumstances, we cannot, but find that the punishment of externment for a period of one year under S.15(1)
(a) of the KAA(P)A is quite justified.
9. We also do not find any technical flaw or delay in the proceedings, which culminated in Ext.P1 externment order. The last prejudicial activity (Crime No.512/2021) was allegedly committed on 8.10.2021. The W.P.(Crl.)297/2022 9 petitioner was arrested on 25.10.2021, according to the authority, whereas the petitioner would contend that he was arrested on the same day, which controversy is not germane for consideration in the present context. Similarly, according to the petitioner, he was granted bail by the High Court in B.A No.8357/2021 on 9.11.2021, whereas the learned Government Pleader would contend that the petitioner stood enlarged by virtue of the orders passed by the Sessions Court, Thrissur in Crl.M.C No.1664/2021 on 18.11.2021. Even if the date of release is 9.11.2021, Ext.P2 request by the fifth respondent/Inspector to the third respondent/District Police Chief was made on 16.12.2021, based upon which the third respondent gave recommendation for initiating action against the petitioner under the KAA(P)A to the second respondent/DIG on 20.12.2021. On 30.12.2021, Ext.P4 show cause notice was issued to the petitioner and on 5.1.2022, Ext.P5 objection was preferred by the petitioner. It is thereafter that Ext.P1 impugned order was passed on 17.1.2022. We find no delay as between the dates of the last prejudicial activity and the externment order; rather the delay stands properly explained, by virtue of the events, which we have W.P.(Crl.)297/2022 10 taken note of above.
10. Finally, we are also apprised of yet another relevant fact having a bearing on Ext.P1 order. Learned Government Pleader submitted that the petitioner was arrested on the allegation that he had flouted Ext.P1 order. With that reason as well, we reject this writ petition, confirming Ext.P1 order.
Sd/-
K.VINOD CHANDRAN JUDGE Sd/-
C.JAYACHANDRAN JUDGE jg W.P.(Crl.)297/2022 11 APPENDIX OF WP(CRL.) 297/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ORDER NO. B3-20972/TSR/2021 DATED 17.01.2022 ISSUED BY THE 2ND RESPONDENT UNDER SECTION 15(1) (A) OF KERALA ANTI-SOCIAL ACTIVITIES (PREVENTION) ACT 2007.
Exhibit P2 TRUE COPY OF THE REPORT NO. 496/TDR/D4/21 DATED 16.12.2021 SUBMITTED BY THE 5TH RESPONDENT TO THE 3RD RESPONDENT.
Exhibit P3 TRUE COPY OF REPORT NO. 30/KAA(P)A/SB-
TSR/2021 DATED 20.12.2021.
Exhibit P4 TRUE COPY OF ORDER NO. B3-20972/TSR/2021 DATED 30.12.2021 OF 2ND RESPONDENT. Exhibit P5 TRUE COPY OF OBJECTION DATED 05.01.2022 SUBMITTED BY THE PETITIONER TO EXHIBIT P4. Exhibit P6 TRUE COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE ADVISORY BOARD, KAAPA. Exhibit P7 TRUE COPY OF THE ARGUMENT NOTE ALONG WITH REPORTABLE JUDGMENT IN CRL.A 139/2022 SUBMITTED BY THE PETITIONER TO THE ADVISORY BOARD, Exhibit P8 TRUE COPY OF REPORT SUBMITTED BY THE 5TH RESPONDENT TO THE SUB DIVISIONAL MAGISTRATE, IRINJALAKKUDA DATED 13.09.2021.
Exhibit P9 TRUE COPY OF THE BOND FOR PEACE EXECUTED BY THE PETITIONER DATED 17.11.2021 BEFORE THE SUB DIVISIONAL MAGISTRATE, IRINAJAKKUDA. Exhibit P10 TRUE COPY OF ORDER NO.35/GL/CSD/2019 DATED 06.02.2019 OF DEPUTY SUPERINTENDENT, CHALAKKUDY AS SUPPLIED TO THE PETITIONER. Exhibit P11 TRUE COPY OF ROWDY SHEET OF THE PETITIONER SUBMITTED BY THE STATION HOUSE OFFICER, KODAKARA POLICE STATION TO THE DEPUTY SUPERINTENDENT OF POLICE, PERUMBAVOOR AS SUPPLIED TO THE PETITIONER.
Exhibit P12 TRUE COPY OF THE ORDER DATED 03.03.2022 IN OP.NO.2/2022 OF KAAPA ADVISORY BOARD.